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Fitchett v. McQuiggin

April 27, 2010

JOHN FITCHETT, PETITIONER,
v.
GREG MCQUIGGIN, RESPONDENT.



The opinion of the court was delivered by: Robert H. Cleland United States District Judge

OPINION AND ORDER (1) GRANTING RESPONDENT'S MOTION TO DISMISS; (2) DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS; AND (3) DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

John Fitchett, ("Petitioner"), presently incarcerated at the Chippewa Correctional Facility in Kincheloe, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, Petitioner challenges his conviction for second-degree murder.*fn1 Respondent has filed a motion to dismiss, on the ground that the current petition was not timely filed in compliance with the statute of limitations. For the reasons stated below, the petition for a writ of habeas corpus will be dismissed pursuant to 28 U.S.C. § 2244(d)(1).

I. BACKGROUND

On August 19, 1976, Petitioner was convicted of second-degree murder by a jury in the Saginaw County Circuit Court. On October 1, 1976, Petitioner was sentenced to life in prison.

Direct review of Petitioner's conviction ended on or about January 17, 1979, when the Michigan Supreme Court denied Petitioner leave to appeal following the affirmance of his conviction by the Michigan Court of Appeals on his appeal of right.*fn2

Between February of 1980 and June of 1983, Petitioner unsuccessfully sought collateral review of his conviction several times with the trial court, the Michigan Court of Appeals, and the Michigan Supreme Court.*fn3 The last of these collateral proceedings concluded when the Michigan Supreme Court denied Petitioner leave to appeal on June 21, 1983. People v. Fitchett, 417 Mich. 1014 (1983).

In 1987, Petitioner filed a motion to vacate sentence in the Saginaw County Circuit Court, which was denied. See People v. Fitchett, No. 76-000219-FY (Saginaw County Cir. Ct. September 15, 1987). The Michigan Court of Appeals denied Petitioner leave to appeal. People v. Fitchett, No. 103936 (Mich. Ct. App. May 31, 1988).

Petitioner did not file an application for leave to appeal this order with the Michigan Supreme Court.*fn4

In 1994, Petitioner filed a post-conviction motion for relief from judgment pursuant to M.C.R. 6.500, et. Seq., with the Saginaw County Circuit Court, which was denied. See People v. Fitchett, No. 76-000219-FY (Saginaw County Cir. Ct. May 16, 1995). There is no indication from the Saginaw County Circuit Court docket sheet that Petitioner ever appealed the denial of his post-conviction motion to the Michigan Court of Appeals or to the Michigan Supreme Court. In addition, this court has reviewed the Michigan Court of Appeals' internet website and there is no indication of any appeal ever having been filed by Petitioner following the denial of his post-conviction motion by the Saginaw County Circuit Court.*fn5 A search of Westlaw's online database has also failed to reveal any appeals filed by Petitioner in the Michigan Court of Appeals or the Michigan Supreme Court.

Petitioner signed this petition on July 21, 2009.*fn6

II. DISCUSSION

Respondent has filed a motion to dismiss the petition for writ of habeas corpus on the ground that the petition was not filed in compliance with the statute of limitations. In the statute of limitations context, "dismissal is appropriate only if a complaint clearly shows the claim is out of time." Harris v. New York, 186 F.3d 243, 250 (2d Cir.1999); see also Cooey v. Strickland, 479 F.3d 412, 415-16 (6th Cir. 2007).

The Antiterrorism and Effective Death Penalty Act ("AEDPA"), which was signed into law on April 24, 1996, amended the habeas corpus statute in several respects, one of which was to mandate a statute of limitations for habeas actions. 28 U.S.C. § 2244(d) imposes a one-year statute of limitations upon petitions for habeas relief:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The ...


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